The New Jersey State Legislature Has Provided a New Layer of Protection to Transgender Students and Individuals

On July 21, 2017, Governor Christie signed two bills approved by the Legislature which reinforces protections for New Jersey’s transgender population. The first, S3067/A4652 now codified as N.J.S.A. 18A:36-41, requires the Commissioner of Education to draft and issue specific guidelines to help schools address the needs of transgender students.

This bill was introduced in New Jersey shortly after the February 22, 2017 decision of the United States Secretary of Education, Betsy DeVos, to withdraw extensive federal guidelines developed previously by the United States Division of Civil Rights under the Title IX of the Education Amendments of 1972, 20 U.S.C. 1681, et seq. These guidelines prohibit discrimination on the basis of sex. The underlying authority in New Jersey for requiring the additional layer of protection for this segment of the student population is the New Jersey Law Against Discrimination (LAD) N.J.S.A. 10:5-12. Despite the requirements of the LAD, there were reports that some New Jersey school districts tried to stop transgender students from using the bathroom or locker room which was consistent with their gender identity. The Department of Education was encouraging districts to adopt policies, but offered no additional guidance at that time.1

The bill was initially introduced in early March. The Legislature explained that “[t]he purposes of the guidelines shall be to provide direction for schools in addressing the common issues concerning the needs of transgender students, and to assist schools in establishing policies and procedures that ensure a supportive and nondiscriminatory environment for transgender students.” Id.

In addition to assuring that schools provide a non-discriminatory and supportive environment, the Legislature outlined the following parameters that must be included in the guidelines. Guidance must be provided on the following:

definitions of key terms for understanding transgender issues including but not limited to: gender identity, gender expression, and transgender person;

maintaining a safe, supportive learning environment free from discrimination and harassment for transgender students and for students who are transitioning;

school record procedures, including a process to maintain a separate official record for student’s legal name and biological gender which also permits such records to be amended based on the presentation of appropriate documentation;

assuring that transgender students are addressed by the names and pronouns of their choosing, regardless of the student’s legal name;

issuing school ID and other documentation in the name indicated as preferred by the transgender student, and permitting the students to dress in a manner that is consistent with the student’s gender identity;

assuring transgender students are permitted to participate on gender-segregated school activities in accordance with the student’s gender identity;

assuring that transgender students have equal opportunities to participate in physical education in accordance with the student’s gender identity;

not requiring a transgender student to use a restroom or locker room that conflicts with their gender identity and being certain to provide reasonable alternative arrangements, if necessary, to ensure a student’s safety and comfort;

ensuring school counselors are prepared to provide assistance with transgender issues and concerns;

include a list of resources that can be accessed to provide additional support to LGBTQ youth and their parents/guardians; and

the Commissioner’s responsibility to periodically review and update the guidelines to insure continued compliance with state and Federal law.

The statute also requires the Commissioner of Education to provide school districts with guidance and resources to provide needed professional development to teachers, administrators, guidance counselors, bus drivers, coaches, and other district staff. In addition, the Commissioner must provide developmentally appropriate information on LGBTQ issues to be made available on school premises, such as providing pamphlets/books in school libraries, counseling, and nurses offices. Though the statute became effective immediately, the Commissioner remains in the development stage on the guidelines.

The second measure passed by the Legislature prohibits state-regulated health insurers, health care plans for public employees, and Medicaid from discriminating in the provision of coverage or services based upon gender identity.2

These are both important measures for school districts because they will provide clear guidance on issues that can sometimes be controversial, thus giving school districts the support needed to ensure a school environment conducive to learning for this segment of the school population, as well as the entire school population. In the interim, be certain district policies comply with the parameters provided by the statute, be prepared to amend the policies once the guidelines have been released, and always consult the board attorney when issues arise concerning transgender students.